Sunday, June 30, 2013

One of F. Scott Fitzgerald's most famous quotes comes from his 1926 short story, The Rich Boy. He wrote, "Let me tell you about the very rich. They are different from you and me." The Rich Boy is not one of Mr. Fitzgerald's most famous works. But the quote is famous because it rings true to many people.

Friday, June 28, 2013

The Supreme Court has invalidated Section 4 of the Voting Rights Act. That provision sets forth a formula for determining what jurisdictions must get "preclearance" from the Department of Justice to change voting practices (even trivial things such as the location of a polling place).

Technically the Court just said that the Congressional formula is no longer "appropriate legislation" given the changes that have occurred since the Voting Rights Act was passed in 1964. So Congress could theoretically fix the provision by coming up with an up-to-date formula. But many think that's likely to be impossible given the political realities in Congress. The main reason they kept approving the old formula was that it was political poison to get into the weeds of renegotiating the formula. So the provision is fixable in theory but dead in fact.

But what if Congress just passed a law that delegated the responsibility to come up with a good formula to some federal agency? They could even say the formula has to be revisited and revised every year, or whatever, thus ensuring that it would always be up to date. This would bypass many of the political obstacles to getting the provision fixed, and it would also meet the Court's argument that the provision was based on antiquated factors.

There are probably big problems with this idea, and I'm certainly no expert on the Voting Rights Act or the unconstitutional delegation doctrine, but I thought I'd just throw it out there for discussion.

Thursday, June 27, 2013

Mr. Gillette and I have made a solemn oath to live until our great nation's tricentennial in 2076. In that year, I will turn 100 and Mr. Gillette will turn 110—assuming we are able to elude history's greatest monster. Many reader(s)™ have, I assume, wondered how we will look when we are out celebrating 300 years of USA! USA! USA! Slate has a nice story with pictures of some current centenarians. I assume we will look a little better than these folks, thanks to technology, but I would settle for this:

Now that the Supreme Court is done working until October, perhaps some of the justices will hit the beach for some rest and recreation. If so I hope they read this NPR report on some of the best and worst beaches when it comes to water pollution and the accompanying public health threats like hepatitis, dysentery, and stomach flu. Those threats are also known as the hat trick of a bad vacation.

Monday, June 24, 2013

Usually it is a good thing when your girlfriend consents. But there are exceptions. One of those exceptions is when the girlfriend consents to a search of your house and computer after she's called the cops because she found child pornography on your computer.

That was the situation under review by the Wisconsin Supreme Court in State v. Sobczak. The specific issue was whether the defendant's girlfriend of three months had authority to consent to the warrantless search of the defendant's computer. She had been using the computer, apparently with the defendant's consent, while she was staying the weekend at his parents' house. But when the defendant went off to work, she went clicking around, found videos of child pornography, and called the cops. I think they broke up.

[O]vernight guests have a “measure of control of the premises” when “the host is away.” Although this passage is hardly free from ambiguity — a “measure of control” isn’t clear about how much of a measure it confers — I would think that the most basic measure of “control” of a house is the ability to invite someone to enter the common areas of the home. If I’m right about that, Podella was exercising that right by allowing the officer to enter the common area of the home when Sobczak was away. Granted, she did so in one of those “unlikely” circumstances in which the guest found evidence of the homeowner’s crime, and the homeowner would not want the guest to invite in the cops. Olson indicates that if the homeowner is present and objects, the homeowner’s veto controls. But the homeowner was not present to object in this case, so I don’t think that conflict of interest matters.

Chief Justice Abrahamson dissented. One of her disagreements with the majority was that it relied on the characterization of the houseguest as the defendant's "girlfriend," and the evidence didn't necessarily support the conclusion that they were so initimately involved. Instead, the record was that they met online, had been dating for three months, and that she'd accepted his invitation to spend the weekend at his parents' house while they were away. Then, in an apparent swipe at the majority, the Chief Justice says,

The majority apparently assumes that a 22-year-old man is having a romantic, intimate relationship with a 20-year-old woman whom he invites over for the weekend while his parents are away.

What do you think, Mr. Gillette: did the majority make a reasonable inference?

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

News broke yesterday that Edward Snowden, the NSA leaker, has been indicted under the Espionage Act. Though this is unsurprising, it has provoked some outrage. To some, Snowden is a whistle-blower doing God's work—an insider and true believer who became disenchanted by what he learned of the NSA's abuses and excesses, and felt the only choice was to make them public. Such conduct seems unworthy of criminal prosecution.

As a civil libertarian who's highly skeptical of government power, I am glad that the documents we have were leaked, and look forward to more. But I'm not sure Snowden is really wearing a white hat.

It seems increasingly plausible, in fact, that Snowden wasn't an insider who became disenchanted, but rather an outsider who purposefully infiltrated the NSA with the specific intent to make its secrets public. For example, the Los Angeles Times reports that Snowden has long been critical of the NSA:

A self-taught computer whiz who wanted to travel the world, Snowden seemed a perfect fit for a secretive organization that spies on communications from foreign terrorism suspects.

But in hundreds of online postings dating back a decade, Snowden also denounced "pervasive government secrecy" and criticized America's "unquestioning obedience towards spooky types."

At least online, Snowden seemed sardonic, affably geeky and supremely self-assured. In 2006, someone posted to Ars Technica, a website popular with technophiles, about an odd clicking in an Xbox video game console. A response came from "TheTrueHOOHA," Snowden's pen name: "NSA's new surveillance program. That's the sound of freedom, citizen!"

It is strange that a person who made these comments would be granted a top-secret security clearance and allowed access to the country's most secret double-secrets, unless it was all just a clever cover story (which I doubt). On the other hand, it makes me feel a bit safer that the NSA's all-seeing surveillance wasn't all-seeing enough to know they had given an obvious mole super-user access to their servers.

But it also provides a possible answer to another nagging question: why was a lowly nerd like Snowden given access to these super-secret documents? One possibility is that he actually wasn't given access to these documents, but took it. In other words, he used his admin privileges to probe the NSA's databases and went looking where he shouldn't have, all with the specific intent of exposing anything he found and considered objectionable.

Obviously, this is rank speculation on my part. ("Rank Speculation" would be a great sub-title for this blog, after all.) But if it's true that Snowden was on a mission to divulge, and that he went looking for documents he wasn't supposed to look at, it's harder to be outraged at the decision to prosecute him—even if you think (as I do) that his actions ultimately further the public interest.

UPDATE (6/24/2013):

According to the South China Morning Post, Snowden now admits that he took the Booz Hamilton job with the specific intent to gather and divulge the NSA's secrets:

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."

Burn anything that Bryan Garner has written. He really knows his stuff, but Strunk and White’s The Elements of Stylesaid it all. Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules. Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.

Thursday, June 20, 2013

When one sees a Detroit Free Press story about a Wayne County, Michigan judge being removed from office, one thinks the story will refer to Judge Wade McCree (see other posts about Judge McCree here, here, here, here, here, and here). But it turns out that Judge McCree is not the only judge in Wayne County to run into problems with the Michigan Supreme Court.

The Supreme Court today issued another opinion (American Express v. Italian Colors Restaurant) making it harder to sue in federal court after you've "agreed" to arbitration and "agreed" to waive any authority to pursue a class action. This kind of case—strengthening arbitration clauses and weakening class action privileges—is what people point to as exemplifying the "pro-business" bias of the Roberts Court. I've pushed back on that argument before, but today I want to push back a little the other way.

Specifically, I want to push back on the idea that these decisions are admirable as vindicating the "liberty of contract." A good example of that argument is made by graysilverback-blawger Walter Olson, who hails today's decision as "a victory for freedom of contract."

I do not think today's decision and the others like it are a victory for any kind of freedom or liberty of contract. I think they are better understood as furthering a pernicious tyranny of contract. No one—and I mean no one—negotiates a credit card or cell phone or cable television contract. This is true for consumers and it is true for small businesspeople. These are take-it-or-leave it arrangements, so the only option is to vote with your feet and sign on with a competitor. But it is no surprise that all the options impose these same onerous terms and waivers because in the final analysis no consumer or small businessperson will ever choose a credit card or cell phone based on finely printed dispute-resolution procedures. We choose on price and features, full stop. Anyone sophisticated enough to understand the effect of these provisions is sophisticated enough to know there is no choice but to accept them.

That is not to say that the Supreme Court's decisions in these cases are necessarily wrong to enforce these provisions. I am suspicious of the "effective vindication" doctrine that was at issue in today's case because it is a judicially crafted exception to rather clear federal legislation. And the objectives the plaintiffs' bar seek to vindicate can be achieved the old fashioned way: through legislation.*

So these decisions can be defended in terms of judicial modesty, and as consistent applications of basic interpretative principles. But it goes way too far, I think, to celebrate them as a triumph for freedom. The existence of these contracts is best understood as a market failure. They have the effect—undisputed in today's opinion—of making it cost prohibitive for people to prove violations of their statutory rights. It may well be wise of the Supreme Court to say, "this is not our problem." (Or, as Justice Kagan put it, "too darn bad.") But let's not pretend that individual freedom was actually increased as a result.

UPDATE: Walter Olson points out on Twitter that "grayback" is apparently an obscure insult, which was not my intent. I meant "silverback," which is to say that Mr. Olson is like a gorilla and that is not at all offensive. In seriousness, I was ineffectively just referencing the fact that he's been blogging about the law longer than just about anyone.

*FOOTNOTE: The chances of such legislation getting passed are undeniable small, for much the same reason that the companies are able to impose these terms in the first place. The companies each have billions on the line, and the consumers have literally pocket change at stake. So there are public choice problems. But another way of looking at this is just that Congress is "pro-business" too.

Over at Slate, freelance writer Mark Joseph Stern, has an article examining the supposedly surprising jurisprudence of Justice Thomas:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

Reader(s)™ will recognize this as a recurring theme of this blog, and I'm happy to see this published at Slate, which is generally a hotbed of the cynical, personality-focused coverage of the Supreme Court that I detest.

But the article contains at least one egregious error in its discussion of Justice Thomas's views on the Eighth Amendment, which Mr. Stern says include approval of "astonishingly torturous methods of capital punishment":

More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.

This is laughably incorrect. The supposed source for this assertion is Justice Thomas's concurrence in Baze v. Rees, but Mr. Stern interprets the concurrence, um, incorrectly. Justice Thomas does discuss "embowelling alive, beheading, and quartering" of convicts, but not as examples of practices the Founders condone. On the contrary, he discusses these practices as the very "cruel and unusual" punishments he believes the Eighth Amendment was intended to outlaw:

That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.

One such “tool” was burning at the stake. Because burning, unlike hanging, was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.

Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376.

* * *

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause.

So, while the article is a welcome corrective to the usual lazy reportage on Justice Thomas, it could sure use some fact checking.

I joked about how there was even a redaction in the case title—the name of what I called the "brave service provider" who had challenged the NSA procedures on behalf of its customers. Today we learned the identity of that service provider: Yahoo!

For once, the exclamation point is appropriate. I'm almost tempted to put one of those Spanish upside down exclamation points in front of it for good measure.

Anyhow, I was perusing the opinion again today, and noticed this passage:

The [Protect America Act] was a stopgap measure. By its terms, it sunset on February 16, 2008. Following a lengthy interregnum, the lapsed provisions were repealed on July 10, 2008, through the instrumentality of the FISA Amendments Act of 2008, Pub.L. No. 110-261, § 403, 122 Stat. 2436, 2473 (2008). But because the certifications and directives involved in the instant case were issued during the short shelf life of the PAA, they remained in effect. See FISA Amendments Act of 2008 § 404(a)(1). We therefore assess the validity of the actions at issue here through the prism of the PAA.

We now know exactly what that "prism" was. I have no doubt that this wordplay was intentional, given the cheekiness of the rest of the opinion and that Judge Selya, the author, is well known for his "distinctive writing style."

Perhaps the rest of the opinion deserves a very, very close reading to see what other secret messages it contains.

Thursday, June 13, 2013

According to Politico, Mr. Toobin has made yet another wrong prediction about the Supreme Court:

the CNN legal analyst and New Yorker staff writer on Thursday made another prediction—although one much less assertive than his inaccurate Obamacare declaration of last year—about the Supreme Court: On MSNBC’s “Morning Joe,” Toobin said “very likely we’re going to get the affirmative action case” today.

Wrong. As a result, Toobin jokes that he is now going "to make all [his] predictions about the past."

Wednesday, June 12, 2013

Seth Stevenson at Slate is going to cover the trial of alleged Boston crime figure Whitey Bulger. Mr. Stevenson's coverage begins here. As Mr. Stevenson notes, Mr. Bulger is accused of a number of crimes. One crime called to mind an episode of "Man Men." Mr. Bulger is accused of murdering a businessman in 1981 as part of an attempt to take over the World Jai Alai association. Was there enough money being made in jai alai that alleged mobsters wanted in on the action? I wonder if the defense to that particular charge will be that Mr. Bulger was not stupid enough to believe he could make money on a sport that virtually no one plays, follows, or knows anything about.

Tuesday, June 11, 2013

The 2016 presidential election is more than three years away. Nevertheless, people are thinking about it. For example, Dan Balz at the Washington Post has this piece about how New Jersey Governor Chris Christie would be a good Republican candidate for president. Among other things Governor Christie is known for publicly praising President Obama's response to Hurricane Sandy in the closing days of the 2012 election. Many Republicans feel this praise hurt Mitt Romney's chances to win the election.

I understand that the future is unknowable and virtually anything can happen. But unless every other Republican politician dies between now and 2016, I do not believe there is any chance that Governor Christie will be the GOP nominee for President. During the primaries, Republican voters will select a candidate, any candidate who has not publicly supported President Obama before they vote for Governor Christie.

Monday, June 10, 2013

The Equal Pay Act turns 50 today. With certain exceptions the act outlaws employers using sex as a reason to pay employees differently when the jobs held by the members of the opposite sex requires equal skill, effort, and responsibility, and which are performed under similar working conditions. According to this, at the time the act was passed women were only getting paid about 59% of what men got paid. That figure has risen to 77% as of 2011. While progress has been made, a pay gap exists

Sunday, June 9, 2013

Our Reader(s)™ might be excused for thinking that all Mr. Torvik and I do is discuss weighty matters like D-Day and domestic surveillance. However, as this Conversation™ demonstrates, we occasionally have a lighter touch here at the Gillette-Torvik Blog.

Friday, June 7, 2013

The Guardian and the Washington Post broke blockbuster stories this week about the NSA using cooperative (some would say pliant) corporations to gather and mine electronic data such as phone records, emails, VOIP, etc.

In short, there’s less difference between this “collection first” program and the usual law enforcement data search than first meets the eye. In the standard law enforcement search, the government establishes the relevance of its inquiry and is then allowed to collect the data. In the new collection-first model, the government collects the data and then must establish the relevance of each inquiry before it’s allowed to conduct a search.

If you trust the government to follow the rules, both models end up in much the same place. I realize that some folks simply will not trust the government to follow those rules, but it’s hard to imagine a system with more checks and restrictions and doublechecks than one that includes all three branches and both parties looking over NSA’s shoulder.

In theory, you could add the check of exposing the system to the light of day, but that means wrecking much of its intelligence value. Or you could simply prohibit the collection-first model (and lose the ability to spot terrorism patterns by matching disparate bits of data). I doubt that those “solutions” are worth the price.

As usual, Mr. Baker is laughably incorrect. It's nice that he pays at least lip service to the idea of transparency before swatting it aside. But he hasn't thought it through. One of the major problems with the current legal apparatus is that judges on the FISA court are making secret interpretations of the law. Thus, people like Congressman James F. Sensenbrenner, who largely drafted the Patriot Act, can be "extremely disturbed" at the way it is being secretly used by law enforcement. This can happen because secret rulings provide no check on government power. If the FISA court judges deny a warrant or a request, the government will just tweak it and come back. Eventually the government will get what it wants because the FISA court judges, like everyone else, care more than anything about just being left alone.

And then, of course, there is the fact that the intelligence courts just kind of have to take the government's word on a lot of stuff. For example, there's a case from the FISA appeals court that rejects a brave service provider's Fourth Amendment challenge on behalf of its customers to a government directive to spy on them. Here's part of the reasoning:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.

A Parting Shot. The petitioner fires a parting shot. It presented for the first time at oral argument a specific privacy concern that could possibly arise under the directives. This parting shot may have been waived by the failure to urge it either before the FISC or in the petitioner's pre-argument filings in this court. We need not probe that point, however, because the petitioner is firing blanks: no issue falling within this description has arisen to date. Were such an issue to arise, there are safeguards in place that may meet the reasonableness standard. We do, however, direct the government promptly to notify the petitioner if this issue arises under the directives.[10]

Id.
I have never read a more Kafkaesque passage in the Federal Reporter. What was the "specific privacy concern" that the service provider raised at oral argument? Apparently even the argument is top secret, because the opinion doesn't say. (It's presumably explained in footnote 10, which is redacted.)

But let's leave aside transparency, because Mr. Baker completely ignores another obvious "check" that is missing against the NSA surveillance program: civil liability. In 2008, Congress passed a law (the FISA Act Amendments of 2008) providing blanket (and retroactive!) immunity for any one or any company who is sued "for providing assistance to an element of the intelligence community." 50 U.S.C. § 1885a(a). Such cases are to be "promptly dismissed." As a result, there isn't even a threat that Google, or Verizon, or any of the other companies that have been providing assistance to the NSA could be sued. If they are, they can just file a one page motion to dismiss and it will be immediately granted.

These companies are in the business of making money. The threat of huge class-action lawsuits can certainly provide a real check on their actions. But Congress removed that threat in 2008. Now the information companies have literally nothing to lose by cooperating with the government because they cannot be sued for doing so. On the other hand, the government can obviously drive up legal costs and threaten them with civil contempt if they don't cooperate. So it's no surprise that the government has now what it assured the FISA court it didn't have in 2008: a database of incidentally collected information from non-targeted United States persons.

Thursday, June 6, 2013

69 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

Jerry Hobbs had been sitting in Lake County Jail for almost five years awaiting trial for the slayings of his daughter and her friend when a man was arrested on unrelated felony charges in Virginia, a pioneer of testing suspects upon arrest rather than waiting for a conviction.

A DNA sample was taken from the man, Jorge Torrez, and it went into a national database, authorities said. It matched the sample from the scene of the Lake County double slaying, according to court records, and Hobbs was soon freed. Torrez, 24, awaits trial in the killings.

We shouldn't be naive about the costs these criminal procedure rights. When we expand rights of privacy and the rights of the accused, we make it more likely that the guilty will go free. Thus, the classic formulation that it is better that nine guilty men get off than one innocent man be convicted.

But the sad reality of our criminal justice system is that the innocent are too often convicted on flimsy or nonexistent evidence. The main culprit here, it seems, is the false confession. It is hard to imagine why someone would confess to a murder or rape he didn't commit, but Mr. Hobbs' case provides a chilling example:

Police immediately suspected Hobbs after he found his 8-year-old daughter, Laura, and her 9-year-old friend Krystal Tobias stabbed to death in a Zion park in May 2005. Hobbs, then a recent transplant from Texas with a long criminal record, denied killing the girls for most of an interrogation that involved several officers and stretched across about 24 hours, police testified.

Late in his questioning, Hobbs said, "I did it. Just write it down. Start this thing and send me to the judge," according to court records.

We now know that Mr. Hobbs just caved in to the pressure because he wanted to get out of the room and go on with his life, even if just for a minute. It seems that mankind's most overpowering urge is just to be left alone. We can hold out for only so long, but eventually we will falsely confess to savagely murdering our own 8-year-old daughter if it means we can just be left alone for a few minutes.

Police interrogations stretching for 24 hours take advantage of this fundamental human flaw to coerce these false confessions. Why do the police do it? My theory is that they, too, do it so that they can get on with their lives and be left alone. You would think after so many false confessions—perhaps most infamously the false confessions of the Central Park Five—the police would change their tactics. But the police are human too. Deep down, they are more interested in just going home to their families than they are in making sure the confessions they get are true. A confession, whether true or false, solves the case and lets everyone get on with their lives. Once you realize that a man will falsely confess to murder just to be left alone for a few minutes, it becomes easy to understand how a cop will use tactics known to produce false confessions. We are all very weak.

This fundamental weakness is why I oppose putting the DNA of innocent people into a nationwide criminal database. The intentions are no doubt pure, and the benefits are real. But you don't have to be paranoid to worry about how a big government full of weak human beings will abuse this information. It's just too much, and the possibilities are too terrible. Just leave me alone.

Wednesday, June 5, 2013

The comic strip Stone Soupran a strip on Tuesday in which the mother in the strip told her daughters to ask three questions before they send a text, email, or post. Those three questions are: (1) is it true; (2) is it kind; (3) is it necessary. At the Gillette-Torvik Blog we strive for one out of three but recognize that these three questions are very good ones to ask before writing or saying anything. I thought of that strip today when I heard about the new controversy surrounding Judge Edith Jones.

Tuesday, June 4, 2013

Mr. Gillette recently posted about Vermont's "optimistic" forced retirement age of 90. As I said in a comment to that post, my intuition is that judges should probably retire sooner rather than later. Here's my thinking, beyond the obvious arguments about how they may be too old to do the job.

1) New blood. There are plenty of good middle-aged lawyers who are waiting to bring a fresh perspective and energy to the bench. Even in systems where there are judicial "elections," they are generally not highly contested affairs. Age limits are a good practical way to clear the way for better judges.

2) Turnover can be good. Although today's elderly are surely healthier than the elderly of yesterday, old judges are just as susceptible to the dreaded "black robes disease" as they used to be. This is another reason for new blood. (Although, to be fair, this particular disease often goes away with age rather than worsening.)

3) Generational equity. I think it's kind of pathetic to see rich old people hanging on to these awesome jobs while qualified people in the next generation scrounge for work—or at least soak up all the available work so that the next generation down has to scrounge for work. I think there should be a strong presumption that old judges should step aside to let the next generation take over.

4) Joe Paterno.

Obviously not every 70-year old is financially independent. But if you are a 70-year who was successful enough to become a judge, you should be financially independent. If you aren't, you likely just spent too much money on stupid things and you do not have my sympathy. On the contrary, I condemn you!

It's not just judges who should retire at 70 or thereabout, by the way. All rich people should retire at around 70 if they can, and that should be the societal expectation and the societal pressure. I'm not saying that there should be laws to enforce this, but we should fogey-shame rich people who hang on to their high-paying jobs past the point of reason.

An example in the news recently is E. Gordon Gee, the president of Ohio State. Mr. Gee is a guy who thinks he's a lot cleverer than he really is, so he's constantly getting into trouble for running his mouth off. (This is a sort of corollary to black-robes diseases—these successful academics who never get negative feedback from their underlings on a day-to-day basis start thinking that people are laughing at their offensive and idiotic jokes because they are actually funny, when the truth is that they're laughing because it is part of their jobs.) After Mr. Gee's most recent outburst became public—in which he insulted "those damn Catholics" at Notre Dame, among many others—he got a stern rebuke from the board of trustees at Ohio State. "One more strike and you're out!" they said, effectively.

But Gee is 69-years old. He makes about $2 million a year now, and he's presumably been making seven figures for many years, and six figures for decades. He is the .00001%. He should just retire. More importantly, everybody around him, including the trustees, should be saying to him, "Why don't you just retire? Why are you hanging on to this awesome, high-paying job that some other person could do without embarrassing the entire state?" The regents' threat to fire him the next time he insults an entire ethnic group is pretty empty—there's no way Gee needs the money. Although I guess he'd rather not be embarrassed by being fired, that's the only thing on the line.

That's a long tangent. Point is, old rich people should be retiring more to make way for the poor and unemployed young people to fill up the ranks. I think it's morally unacceptable for them not to accept a life of leisure at this point.

Following yesterday's Supreme Court opinion in Maryland v. King, in which the Court approved a Maryland law allowing the state to take DNA samples from all people accused of certain serious crimes, the Cook County sheriff's office announced today that it would start doing the same thing:

With the U.S. Supreme Court clearing the way for police to collect DNA from suspects in serious crimes, the Cook County sheriff's office says it will begin taking samples next month from jail inmates charged with murder, home invasion and certain sexual offenses.

An Illinois law that took effect early last year allowed law enforcement officials throughout the state to take that action, but Cook County authorities decided to hold off until the Supreme Court weighed in on the issue.

As the Tribune article notes, the existing law already required DNA samples be taken from everyone convicted of serious crimes. No one disputes that this is appropriate and constitutional. But the new law allows DNA samples to be taken from everyone even accused of serious crimes, and that's what Cook County is going to start doing.

So the only practical effect of this new law, as far as I can tell, is that the DNA database will grow to include samples from people who were accused of serious crimes but never convicted. In other words, innocent people.

Nonetheless, Professors Akhil Reed Amar and Neal Katyal think King was a great decision because it passes the true test of the Fourth Amendment which is ... well, swabbing the DNA of innocent people for a government database is "not unreasonable":

On one hand, the swabbing itself is not particularly intrusive — no more so than a fingerprint or a lineup. Proper DNA testing can simultaneously exonerate innocent people who have been wrongly accused and find the bad guys — a true win-win situation — and in the process, this amazing new technology can powerfully deter crime. On the other hand, DNA testing without strict safeguards can reveal lots more personal information than a mere fingerprint. (For example, who is the suspect’s actual biological father or child?) If members of racial minorities are more likely to be wrongly arrested, they and their relatives will loom disproportionately large in the government’s DNA database.

Reasonable minds can differ on this. And therein lies the real genius of the Fourth Amendment. Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman. Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.

The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”

I guess we'll just have to trust our eminent legislators to make the right calls on these profound questions of privacy and "human dignity" because, according to the professors, the constitution has nothing to say about them.

Monday, June 3, 2013

His claim to fame was abusing the federal government's spending power to create a de facto national drinking age of 21. This law created, and continues to create, millions of young "criminals" who could with a stroke of the president's pen be drafted to fight in a foreign war but cannot legally buy or ingest a light beer. The law is an abomination.

The current Supreme Court has two intellectual giants: Stephen Breyer and Antonin Scalia. Justice Scalia is a powerful and public advocate for textualism and originalism as tools of constitutional interpretation. Justice Breyer is an equally ardent advocate for an opposing theory of constitutional interpretation that he calls "active liberty," which is essentially pragmatism.

A common criticism of Justice Scalia is that his theories of constitutional interpretation are just politics by other means. Because he is a conservative, the argument goes, it is no surprise that he espouses interpretative principles that require fealty to the ideas of long-dead, slave-holding white men. The common rejoinder is to point out areas where Justice Scalia's avowedly neutral principals lead him to results that are at odds with the policy preferences of modern conservatives. This happens, for example, in cases concerning questions of constitutional criminal procedure, particularly the constitutionality of various searches and seizures under the Fourth Amendment.

Justice Breyer's pragmatic approach to the constitution is open to the attack that it is just intellectual cover for imposing his policy preferences. This is Scalia's own criticism, in fact, and it stings. But Justice Breyer can also point to cases where his vote or his opinion did not comport with the policy preferences of modern liberals. Indeed, the Fourth Amendment is such an area. As Professor Orin Kerr points out, Breyer and Scalia have been on opposite sides of every contested Fourth Amendment case this term:

Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

What gives?

One possibility is that these Fourth Amendment cases don't really trigger a liberal / conservative divide. Since Bill Clinton's move to the center in the 1990s, both Republican and Democrats have become "law and order" parties. The cops have won over everyone but the libertarians, and perhaps Scalia has libertarian policy preferences and Justice Breyer has the standard bipartisan, authoritarian policy preferences.

I don't think that's right, though. Libertarianism is not a consistent strain in Justice Scalia's stated worldview. For example, his views on morals legislation, particularly in the realm of gay rights, have no room whatsoever for libertarianism.

Professor Kerr has an interesting hypothesis:

What explains the trend? It might just be a coincidence. But I suspect some of it reflects the fact that a lot of the recent cases have involved Fourth Amendment balancing. Scalia dislikes balancing, while Breyer revels in it. Those different instincts may pull their votes in different directions. Also, defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing. So we’re seeing more defense-side briefs targeting Scalia’s vote. But the problem is that Scalia and Breyer look at Fourth Amendment cases in exactly opposite ways. The kind of argument that appeals to Scalia can lose Breyer, and the kind of argument that appeals to Breyer can lose Scalia.

This gets right to the heart of the Scalia / Breyer divide. Scalia, as a textualist, wants to derive the results directly from the words of the law, so believes that those words should be interpreted to compel clear results. Breyer, the pragmatist, sees the words as a starting point for an analysis of consequences, among other things. The words have value—for to reach a result starkly contrary to them would be imprudent because it would bring the law into disrepute—and clarity has value, but what matters ultimately is providing guidance on how to reach the most just results in the most cases. Thus, balancing tests.

All of which is to say that I think both Justice Scalia and Justice Breyer are, fundamentally, intellectually honest judges who generally adhere to powerfully reasoned and coherent views of constitutional interpretation.

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